Last Updated on November 4, 2019 by LawEuro
FIFTH SECTION
CASE OF HADZHIEVA v. BULGARIA
(Application no. 45285/12)
JUDGMENT
STRASBOURG
1 February 2018
FINAL
02/07/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Hadzhieva v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
Nona Tsotsoria,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer, judges,
Maiia Rousseva,ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 45285/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkmen and Russian national, Ms Dzheren Annadurdievna Hadzhieva (“the applicant”), on 27 June 2012.
2. The applicant was represented by Mr K. Kanev, head of the Bulgarian Helsinki Committee. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
3. The applicant alleged, in particular, a breach of Articles 8 and 13 as a result of the failure by the authorities to provide her with assistance following her parents’ arrest in December 2002, and the absence of an effective remedy in this connection.
4. On 8 December 2014 these complaints were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
5. Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3). Accordingly, the President of the Fifth Section appointed Ms Maiia Rousseva to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).
6. On 17 December 2014, the Russian Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1. They chose not to avail themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1988 and lives in Varna.
A. Background
8. As is apparent from the documents in the file, the applicant moved from Turkmenistan to Bulgaria in late 2001 together with her parents. In the summer of 2002 she obtained temporary residency status. Before the move, the applicant’s father had been the deputy chair of the Central Bank of Turkmenistan and later a member of a political movement which was critical of the domestic political regime. It appears that, because of her father’s political activity, members of her family were subjected to persecution in Turkmenistan and that in 2006 the applicant’s aunt was tortured and murdered in prison.
9. The applicant started studying at a secondary school with an intensive foreign languages curriculum in the autumn of 2002. Her father opened his own construction business in Bulgaria.
10. On 22 October 2002 the Turkmen authorities charged both of the applicant’s parents with aggravated embezzlement of public funds amounting to 40,000,000 United States dollars, allegedly committed between 25 July 2002 and 3 September 2002. The Turkmen prosecutor ordered their detention in relation to those charges and filed a request for their extradition with the Bulgarian authorities.
B. The arrest and detention of the applicant’s parents
11. The following circumstances are undisputed between the parties.
12. On 4 December 2002 the applicant, aged fourteen at the time, was alone at home. At around 11 a.m. about ten police officers arrived at the family apartment. On entering the apartment the officers informed the applicant that they had come to arrest her parents. She called her parents on the telephone. It appears from the documents before the domestic courts that at that time, the parents were out shopping accompanied by their legal representative, who returned home with them. This took some time because of heavy traffic. In the meantime the officers prohibited the applicant from moving around the apartment and interrogated her in the absence of a social worker and a psychologist, despite having seen her identity document, which indicated her age.
13. The applicant’s parents were arrested as soon as they arrived home. The record of a court hearing in the domestic proceedings for damages (see paragraphs 27-41 below) indicates that the parents’ legal representative was present during the arrest. The lawyer stated that the police officers had not allowed the parents to collect personal belongings from the flat but that, as far as he could recall, they had allowed the applicant to hand them some personal items from the flat. He did not know where the police officers had taken the applicant’s parents but said that he thought that they had been taken to the Regional Investigation Office. In any event, he had visited them the following day but could not remember exactly where. The legal representative also stated that during the next few days his task had been to circulate between the two different prisons where the applicant’s parents were detained in order to organise their defence. He stated that he could not describe the state of the applicant at the time of the arrest, his task having been to defend her parents. He did not know what had happened to the applicant and had not seen her after her parents’ arrest.
14. An order for the applicant’s parents’ detention for twenty-four hours was issued by the police on 4 December 2002 and they were placed in police custody for that period. Upon their application for judicial review of that detention order, the Varna Regional Court set it aside the following day, finding it flawed as it did not indicate any legal grounds for the detention. Immediately upon their release from police custody the applicant’s parents were served with a prosecutor’s order for their detention for seventy-two hours in connection with the extradition request (see paragraph 10 above). They were detained on the spot.
15. On 6 December 2002, at two separate hearings, the Varna Regional Court extended their detention for a period of thirty days. The applicant’s father was taken to Varna Prison and her mother to Sliven Prison.
16. During and after the court hearings on 6 December 2002 the applicant’s parents were represented by the same lawyer who had been present during their arrest and was a friend and neighbour of the family.
17. The parties dispute what took place at the hearing when the judge enquired about the care measures in place in relation to the applicant. According to the latter, when her mother was asked by the judge through an interpreter whether there was anyone who could take care of her child, her mother replied by shaking her head. In Bulgaria nodding one’s head signifies “no” and shaking it means “yes”. According to the applicant, the judge, having interpreted the mother’s response as “yes”, noted in the record of the hearing: “The child has someone to take care of her”.
18. The Government, in contrast, pointed to the record of the hearing, which indicated that the applicant’s mother had replied that there was someone who could take care of her child. In their view, this was evidence of the mother’s reply. In addition, they cited an excerpt of the court’s record where the applicant’s mother had addressed the court in the following terms: “I am very surprised as I have worked as an associate professor, with a doctorate in science, for ten years, and for some reason, they want to accuse me of something that happened out there, and I’ve been living here for a whole year. We came here so that my children could study in Varna, in a democratic country, because Turkmenistan is a dictatorship; a fascist regime has begun. There is someone to take care of my child.” According to the court record of the hearing, the mother’s statement had been preceded by an intervention by the prosecutor, who had indicated that it was necessary to comply with the requirements of Article 152 § 6 of the Code of Criminal Procedure, so that if the family had no relatives or friends to care for the child, the municipality had to be informed with a view to placing her in a child-care centre, kindergarten or boarding facility (интернат).
C. The applicant’s parents’ release and the decision on their extradition
19. On an appeal by the applicant’s parents, the Varna Court of Appeal lifted the detention orders in two separate decisions on 17 December 2002. The applicant’s parents were released on bail and returned home to the applicant the same day.
20. The request for their extradition to Turkmenistan was ultimately refused on 22 May 2003 by the Varna Regional Court. During those proceedings they were represented by the same lawyer. The refusal became final on 30 May 2003 as it had not been appealed against. The court found that the criminal proceedings against the applicants’ parents were connected to the father’s political activities and that the extradition request had been made with the aim of persecuting and punishing him for his political beliefs.
D. The circumstances of the applicant during her parents’ detention
21. It is alleged that the applicant’s parents were arrested so rapidly that they did not manage to leave any money for her, or to give her any instructions as to whom to turn to or how to go about caring for herself. The officers did not tell the applicant for how long they were taking her parents away, where they would be taken or for what reason. According to the applicant, they indicated that they would either lock her parents in prison or deport them to Turkmenistan. Both prospects caused the applicant anguish as she had heard that prisons were horrible both in Turkmenistan and in Bulgaria. She also feared that her parents might be subject to the same treatment in Bulgaria that members of her family had endured in Turkmenistan.
22. According to the applicant, no one took care of her after her parents’ arrest. She only found 15 levs (about 7 euros (EUR)) in the apartment, which she used for bus tickets to go to school and for food. The money ran out fast and during the last days of her parents’ absence she did not have anything to eat. She suffered insomnia and, when she could sleep, had nightmares. Before her parents’ arrest, her mother had been the one to wake her up in the morning.
23. She permanently dreaded being herself sent back to Turkmenistan, where her relatives were in prison and her grandparents had been made homeless for having opposed the regime.
24. She alleged that she had gone several times to the police’s office for foreigners, looking for her parents. She had also tried to telephone people in Turkmenistan to ask for help. Both steps proved unsuccessful.
25. The applicant had to ask people in the street how to reach her school as, before the arrest, her father had always taken her there. At some stage during her parents’ detention a stray dog bit the applicant on the leg. She did not know what to do or how to seek help. Her mother took her to hospital on 18 December 2002, the day after she was released from detention, fearing that the wound might have become infected.
26. The Government alleged that it had not been proven that the applicant had been left alone, without an adult carer, during the period in question. The Government stressed that the applicant’s parents had been represented throughout by the same legal representative, who was, moreover, a neighbour and friend. When questioned in the context of the domestic proceedings in the applicant’s case about the exchanges in court on 6 December 2002, the lawyer indicated that he had no recollection of them (see paragraph 35 below).
E. The applicant’s claim for damages
1. Proceedings before the Varna Regional Court
27. On 7 March 2006 the applicant, with her parents’ agreement, brought proceedings for damages under section 45 of the Contracts and Obligations Act before the Varna Regional Court. She directed her claim against the Varna regional office of the Ministry of the Interior, the Prosecution Service, the Ministry of Justice and the Supreme Judicial Council, and sought to establish the responsibility of the authorities that had left her unattended during her parents’ detention in December 2002, in breach of the Child Protection Act.
28. In a decision of 27 March 2006 the court invited her to specify the grounds of her claim and to indicate the specific actions, the particular respondent and the type of damage caused to her. She specified that she was seeking compensation for non-pecuniary damage stemming from the authorities’ failure to organise support and care for her during her parents’ detention.
29. On 10 April 2006 the court reclassified her claim under section 49 of the Contracts and Obligations Act. It further invited her to specify the names of the officials against whom she had directed her claim, and to show that she had paid the court fees of about EUR 10,000, corresponding to 4% of the total amount of damages sought. The applicant lowered the value of her claim on 9 May 2006, paid the corresponding court fees in the amount of about EUR 6,135 and submitted additional proof to the court.
30. On 15 May 2006 the Varna Regional Court terminated the proceedings as it found that the applicant had failed to correct the irregularities in her claim as directed by the court on 10 April 2006.
2. Proceedings before the Varna Court of Appeal and the Supreme Court of Cassation
31. The applicant appealed on 12 May 2006 to the Varna Court of Appeal, submitting that the respondents were the legal entities specified in her legal claim of 7 March 2006 as amended, given that they had been represented by different individuals at different points in time. The appellate court upheld the lower court’s decision on 4 October 2006.
32. The applicant lodged an appeal on points of law, submitting that her claim was directed against the different institutions as legal persons, as she could not know the names of the individual officials who had failed to provide her with care. She also described her condition after her parents’ detention. On 14 February 2007 the Supreme Court of Cassation quashed the lower court’s decision, finding that it had wrongly instructed the applicant to specify individual respondents. It remitted the case to the first-instance court, the Varna Regional Court, for a fresh examination.
3. New examination by the Varna Regional Court
33. On 25 October 2007 the applicant further specified her claim before the Varna Regional Court, in particular describing her circumstances in the immediate aftermath of her parents’ arrest and the continuing psychological trauma which she had suffered as a result. She submitted that during the hearing on 6 December 2002 on the extension of her parents’ detention, the judge had wrongly interpreted her mother’s response to the question posed regarding her care.
34. A psychiatric and psychological report was prepared in the context of the court proceedings in 2008. The report established that the applicant was depressed and at times aggressive. This was attributed to the shock she had experienced in relation to her parents’ detention and the ensuing uncertainty. She showed signs of accumulated tension, fear, worries, disappointment and anger towards the officials who had abandoned her to her own devices following her parents’ arrest. She had no interest in her daily life or in the future and had become withdrawn as a result of her loss of confidence in the justice system. Two additional medical expert reports were prepared in 2008. They found that the applicant was suffering from post-traumatic stress disorder, which was probably the result of what she had gone through after her parents’ arrest. The doctors stated in court that no improvement was likely in her case and that her condition was expected to become chronic. Another medical report ordered by the court in 2009 confirmed that the applicant was suffering from post-traumatic stress disorder and that, while she had been a healthy and energetic child prior to her parents’ arrest, she had experienced frequent bouts of depression thereafter and had succumbed to overwhelming feelings of self-pity, insecurity and futility of effort and engagement.
35. The applicant’s parents’ lawyer, who had attended the hearings relating to their detention in 2002, testified on 22 February 2008 that he did not know what had happened to the applicant during her parents’ arrest; nor could he remember anything about the circumstances relating to the question and answer in court on 6 December 2002 concerning her care. On 24 October 2008, during the same proceedings, the applicant’s teacher testified that she could not remember the applicant being absent from or having gone hungry at school. The girl had not complained to her about anything at the time.
36. The Varna Regional Court rejected the applicant’s claim on 27 July 2009, finding that it had not been proven that she had been left alone while her parents had been detained in December 2002. The court also held that, in the three days following the court hearing on 6 December 2002, the applicant’s mother had not sought to have the record of the hearing rectified, even though it was legally possible to do so.
37. Furthermore, the court held that on 6 December 2002 the Varna Regional Court had accepted that the mother had replied in the affirmative to the judge’s question regarding whether there had been anyone to care for the applicant. That question had been transmitted to the applicant’s mother with the assistance of an interpreter. Consequently, the court concluded that it had not been incumbent on the criminal justice system to act in any other way in order to protect the applicant.
38. The court further accepted fully the conclusions of the psychological reports on the applicant’s state of chronic post-traumatic stress disorder after the December 2002 events. However, it found that the only evidence supporting the applicant’s claim that she had been left alone in December 2002 was her parents’ testimony and that there were no other pieces of evidence in support of this assertion. Given that the mother had stated during the hearing on her detention that someone had been taking care of the child, the conditions set out in Article 152 of the Code of Criminal Procedure had not been met and, therefore, the institutions involved in the criminal proceedings had not been obliged to pursue steps towards taking the applicant into care.
4. New appeal before the Varna Court of Appeal and the Supreme Court of Cassation
39. The applicant appealed to the Varna Court of Appeal. She again challenged the findings of the lower court about her mother’s reply during the court hearing on 6 December 2002. She also submitted that her mother had not been in a position to see the record of the hearing, given that she had been taken back immediately to the remand prison. She further asserted that the authorities had been under an obligation to verify at the time of the arrest on 4 December 2002 and immediately afterwards whether care had been available to her, and that in any event they should not have waited two days to enquire about her situation for the first time during the court hearing. She submitted that her current state of health was the direct result of the shock and stress she had endured in connection with the arrest and the lack of provision of care. She paid about EUR 3,000 in court fees.
40. The appellate court confirmed the lower court’s decision on 10 December 2010. It found that, even if the applicant had been left alone after the arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated that there had been someone to take care of her. In addition, the post-traumatic stress disorder from which it had been established that she suffered could have been the result of additional factors not directly related to her parents’ arrest.
41. The Supreme Court of Cassation rejected an appeal on points of law by the applicant in a final decision of 18 January 2012, finding no grounds for allowing the appeal to be pursued.
F. Further developments
42. The applicant was granted humanitarian status on 10 March 2004 and refugee status on 15 September 2007.
II. RELEVANT INTERNATIONAL TEXTS
United Nations Convention on the Rights of the Child 1989
43. This treaty (hereinafter “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 3(i) of the UN Convention states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
III. RELEVANT DOMESTIC LAW AND PRACTICE
A. The authorities’ duties in respect of child care
44. Section 4 of the Child Protection Act (“the Act”) provided at the time of the events that child protection had to be carried out through: (1) assistance, support and services rendered in the child’s family environment; (2) placement of the child with relatives or close family members; (3) placement of the child with a foster family; (4) placement of the child in a specialised institution; or (5) police protection. Pursuant to section 6 of the Act as in force at the time, child protection had to be implemented by the State Agency for Child Protection and the Social Assistance Offices.
45. Subsection 2 of section 7 of the Act provided at the material time that any person who had knowledge that a child was in need of protection, where this knowledge had been obtained in the course of the fulfilment of his or her professional duties, had an obligation to report the case to the nearest Social Assistance Offices.
46. Article 152 of the Code of Criminal Procedure as in force at the time of the events regulated the taking of suspects into police custody. Paragraph 6 of that Article provided thata detained person’s children were to be taken into care, via the respective municipality, if they had no relatives able to look after them.
B. Claims for damages
47. Section 49 of the Obligations and Contracts Act 1951 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Liability under that provision – as, indeed, under all provisions governing tort – is premised upon the wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав).In accordance with section 110 of the Obligations and Contracts Act, the limitation period for tort claims is five years.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
48. The applicant complained that the failure of the authorities to provide her with assistance, despite the fact that she was a minor left alone after her parents’ arrest in December 2002, had provoked serious stress and suffering, in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
49. The Government contested that argument.
A. Admissibility
50. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The Government’s submissions
51. The Government considered the complaint to be unconvincing and reiterated that it had not been proven that the applicant had been left alone during her parents’ detention. They emphasised that, as the applicant’s mother had told the court that there had been someone to care for her daughter, neither the institutions involved in the preliminary criminal proceedings against her parents nor the court had been under an obligation to examine any further whether it was necessary to provide assistance to the applicant.
52. They pointed out that the applicant’s parents’ lawyer had been present at the hearing of 6 December 2002 and that he had later testified in the proceedings for damages brought by the applicant that he had not known what had happened to her during her parents’ detention. His statement had led to the conclusion that the applicant had been adequately cared for during her parents’ detention. Also, the applicant’s class teacher had testified during the same proceedings that she had not remembered the applicant having gone hungry or being cold or upset at school during the period in question.
53. Furthermore, as the family had been living in Bulgaria for about a year before the parents’ arrest, it had been plausible that they had a circle of friends and acquaintances to whom they could have entrusted the care of their child in their absence, if they had preferred not to seek assistance from the authorities. Similarly, the applicant’s mother, during her stay in Sliven Prison, could have alerted the authorities to the fact that it was possible that her daughter had been left alone, or could have asked for the record of the hearing to be corrected.
2. The applicant’s submissions
54. The applicant stated that the police had not provided any opportunity to her parents to arrange for her care at the time of their arrest. According to the applicant, they had been unaware of the criminal charges against them in Turkmenistan, which had been fabricated as the subsequent related judicial proceedings had demonstrated. They had not expected to be detained and could not have known that they would not see the applicant for thirteen days.
55. The applicant’s parents had been separated and held in two different detention facilities, about 200 kilometres from each other. Her mother had been unaware of the applicant’s situation as she believed that during the hearing on 6 December 2002 she had informed the court that no one had been available to care for her daughter.
56. The applicant submitted that the authorities’ positive obligations under Article 8 of the Convention were activated immediately when the situation of a child at risk was brought to their attention. In her case, this had applied from the moment the police had entered her home to arrest her parents. The police had questioned the applicant and had seen her identity document, from which it had been clear that she was a minor. When her parents had been arrested, there had been no one else in the apartment who could have been asked to inform the competent authorities to arrange for the applicant’s care.
57. The applicant’s mother could not have asked for the record of the hearing to be corrected as she had been taken from the hearing room directly to Sliven Prison, where, according to the applicant, she had had no access to the record, to a lawyer or to an interpreter. She had also been extremely stressed about her life and safety. As a foreigner who had arrived in the country less than a year earlier she had not known how the Bulgarian child-protection system worked. In particular, given that she had believed she had told the court that no care had been in place for the applicant, she had had no reason to assume that the competent agencies had failed to fulfil their duties.
3. The Court’s assessment
(a) General principles
58. The Court has held in cases involving complaints examined under Article 8 that respect for private life includes a person’s physical and psychological integrity (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008, and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 83, ECHR 2006-XI). Furthermore, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). The Court has also held that the cumulative effect of the domestic authorities’ failure to adopt measures, including but not limited to interim court measures, as required in a situation which adversely affected the applicants amounted to a failure to assist them, in breach of the State’s positive obligations under Article 8 to secure respect for their private and family life (see Bevacqua and S., cited above, § 84). The Court has also found, albeit in the context of a complaint made under Article 3 of the Convention, that the failure of the authorities to organise care for an applicant, who was aged twelve when his parents were arrested and held at a police station for several hours, or to explain the situation to him, reached the threshold required by Article 3 and constituted degrading treatment (see Ioan Pop and Others v. Romania, no. 52924/09, § 65, 6 December 2016).
59. The obligations incurred by the State under Article 8 of the Convention as regards the protection of minors require that the best interests of the child be respected (see, for example, in the context of taking children in public care, Haase v. Germany, no. 11057/02, § 80, ECHR 2004-III (extracts)).
(b) Application of these principles to the present case
60. In the present case, the situation clearly presented risks for the applicant’s well-being, given that she was fourteen years of age when her parents were arrested.
61. In the Court’s view, the relevant domestic legal provisions (see paragraphs 44-46 above) were designed to protect children but there is nothing to suggest that they were applied in the present case. In particular, the Government have not demonstrated that, at the time of the arrest, the police notified the relevant authorities that the applicant’s parents were being taken into custody and that she was being left unattended. As is apparent from the Government’s observations, the first time an authority enquired into whether the child had a carer was during the court hearing which took place two days later.
62. Consequently, the authorities had a responsibility either to place the applicant’s parents in a position to arrange for her care at the time they were taken into custody, or to enquire into the applicant’s situation of their own motion. Once the authorities had established the circumstances relating to the applicant’s care in her parents’ absence, if it appeared necessary, they had an obligation under domestic law to provide her with assistance, support and services as needed, either in her own home, in a foster family or at a specialised institution. This obligation, pursuant to domestic law, appeared to arise from the moment her parents were taken into custody (see paragraphs 45-46 above). The Government have not submitted that any of this was done by the relevant authorities at any point in time before the hearing on 6 December 2002, which was two days after the arrest of the applicant’s parents. The Court thus finds that, as regards the period between the applicant’s parents’ arrest and the hearing on extending their detention, the authorities failed to comply with their positive obligation under Article 8 of the Convention to act in order to ensure that the applicant, who was a minor left without parental care, was protected and provided for in her parents’ absence.
63. The Government did not submit that the authorities had checked on the applicant’s situation in the days that followed, that is to say between 6 December 2002, the date of the first hearing, and 17 December 2002, the date of the appellate hearing and the release of the applicant’s parents. The Court considers that it is not its task to specify which authority could have done what exactly and when in order to prevent the applicant’s potential exposure to suffering provoked by the uncertainty about her own fate and that of her parents after their arrest. However, it notes that the Government have not argued that at any point in time did any relevant authority visit the applicant, verify that she was not in fact alone following her parents’ arrest, inform her about her parents’ situation, clarify her own situation to her, or – given her age – take her to visit either or both of them in prison.
64. The Government emphasised that it had not been proven by the applicant that she had indeed been left alone and uncared for throughout her parents’ absence. They submitted that it was plausible that the applicant’s parents would have had a circle of friends and acquaintances to whom their daughter could have turned in their absence. In addition, the Government pointed out that the applicant’s parents’ own lawyer had been present during the hearing on extending their detention and had stated during the subsequent proceedings for damages brought by the applicant that he did not know what had happened to her. Similarly, the applicant’s teacher had testified that she had no memory of the applicant having been hungry, cold or distressed at the time (see paragraph 35 above). Finally, the Government submitted that the applicant’s mother could have alerted the authorities to her daughter’s situation while she had been in prison and that she could have asked that the record of the court hearing be corrected in respect of the availability of care to the applicant.
65. The Court observes the following. The applicant’s parents were educated personsfrom a prominent background with high-level professional experience, were apparently of means and not lacking in skills, and cared for their daughter (see paragraphs 8, 9, 18 and 25 above). They were legally represented during the extradition proceedings by a lawyer of their own choosing. That lawyer had taken part in the court hearing when the judge had enquired into the applicant’s care in the absence of her parents (see paragraph 17 above); he had continued to represent the applicant’s parents throughout their subsequent detention and had, moreover, been a neighbour to the applicant’s family (ibid.). Furthermore, in addition to being recorded as stating in court that there was someone to care for her daughter, the applicant’s mother did not at any point in time – either before or after that hearing, at the time of her arrest or later from prison – raise with any authority the question of the applicant’s care during her detention. Neither did her father, who had been arrested at the same time and together with the mother, notify any authority at any point in time that his daughter had been left alone or that he had any concerns about her care in his absence.
66. In the circumstances, the Court finds that the competent authorities had no reason to assume, or suspect, after the court hearing on 6 December 2002 that the applicant had been left alone and not provided for in her parents’ absence. Consequently, their obligation under domestic law to take detained persons’ children into care, if no care was available to them, was not relevant after the hearing on 6 December 2002. Accordingly, in the absence of any steps by or on behalf of the parents at the time of the events, the Court finds that, in the subsequent proceedings for damages brought by the applicant, the domestic courts’ reliance on the record of the detention hearing and their conclusion that neither the police, nor the prosecution, nor the courts had needed to enquire any further about the applicant’s situation did not amount to a failure to act appropriately in the context of their Article 8 obligations.
67. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention as regards the period before 6 December 2002, and no violation as regards the period after that date.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
68. The applicant complained under Article 13 in conjunction with Article 8 that she did not have an effective domestic remedy in relation to her complaints. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”
69. The applicant submitted that in the proceedings for damages which she had brought, the courts at all levels had completely disregarded her assertion that the police officers had failed to comply with their statutory duties to protect her physical and psychological well-being by seeking to verify at the time of the arrest that appropriate arrangements were in place for her care. Similarly, her assertion that the judge at the hearing on 6 December 2002 had failed to verify the existence of such arrangements had been considered unfounded solely on the basis that the record of that hearing had indicated that her mother had informed the court that care was available.
70. The Government submitted that in the proceedings for damages the courts had correctly concluded that, while it had been established unequivocally that the applicant suffered from post-traumatic stress disorder, there had been no causal link between the authorities’ actions and the applicant’s state.
71. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
72. Having regard to the finding of a violation under Article 8 as a result of the lack of action by the authorities to ensure effective protection of the applicant during the first two days after her parents’ arrest, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 (see, among other authorities,M.D. and Others v. Malta, no. 64791/10, § 84, 17 July 2012, and Prezhdaroviv. Bulgaria, no. 8429/05, § 56, 30 September 2014).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
73. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
74. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
75. The Government considered this amount unfounded and excessive.
76. The Court considers that the uncertainty created when the applicant, aged fourteen at the time, was suddenly deprived of her parents’ presence and care during the first two days after their arrest caused her anxiety and suffering. Accordingly, it awards the applicant EUR 3,600 in respect of non-pecuniary damage.
B. Costs and expenses
77. The applicant also claimed EUR 12,031.81 for the costs and expenses incurred both before the domestic courts and before the Court. Of this amount EUR 6,135 corresponded to the court fees paid in the proceedings for damages (see paragraph 29 above), EUR 160 to costs for expert reports prepared in the context of the same proceedings, EUR 3,000 to the court fees paid in the second examination of her claim for damages by the appellate court (see paragraph 39 above), EUR 1,189 to her lawyer’s fees in those proceedings, EUR 107.81 for costs and expenses related to the cassation proceedings, and EUR 1,440 for her lawyer’s fees for the proceedings before the Court. She indicated that the sum for her lawyer’s fees for the proceedings before the Court should be paid into the bank account of the Bulgarian Helsinki Committee.
78. The Government stated that the claim for an award of costs incurred by the applicant before the national courts was unjustified.
79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, as regards the domestic costs and expenses, the Court reiterates that it will uphold such claims only in so far as they relate to the violations it has found. It then notes that the applicant incurred EUR 10,591.81 in costs and expenses before the domestic courts in seeking redress in connection with the violation of the Convention found in the present case. This amount covers the elements described in paragraph 77 above, other than the amount sought for legal fees incurred before the Court. Regard being had to the fact that the Court has found a violation of Article 8 of the Convention only as regards part of the period complained about, the Court considers it reasonable to grant this claim in part and accordingly awards EUR 4,000 under this head.
80. Furthermore, the Court awards the applicant EUR 1,260 in respect of legal fees for the proceedings before it and holds that this amount is to be paid into the bank account of the Bulgarian Helsinki Committee. This amount has been determined with reference to the hourly rate of EUR 70 applied in respect of applicants’ lawyers’ fees in recent cases against Bulgaria of comparable complexity (see Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January 2009; Mutishev and Others v. Bulgaria, no. 18967/03, § 160, 3 December 2009; and Penchevi v. Bulgaria, no. 77818/12, § 88, 10 February 2015).
C. Default interest
81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares, unanimously,the application admissible;
2. Holds, by four votes to three,that there has been a violation of Article 8 of the Convention as regards the period before 6 December 2002;
3. Holds, unanimously, that there has been no violation as regards the period after that date;
4. Holds, unanimously, that there is no need to examine the complaint under Article 13 of the Convention;
5. Holds, by four votes to three,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,to be converted intoBulgarian levs at the rate applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,260 (five thousand two hundred and sixty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, of which EUR 1,260 is to be paid directly into the bank account of the Bulgarian Helsinki Committee;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses, unanimously,the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 1 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Angelika Nußberger
Registrar President
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In accordance with Article45 §2 of the Convention and Rule74 §2 of the Rules of Court, the joint dissenting opinion of Judges Møse, O’Leary and Rousseva is annexed to this judgment.
A.N.
C.W.
JOINT DISSENTING OPINION OF JUDGES MØSE, O’LEARY AND ROUSSEVA
1. The majority of the Chamber have found a violation of the Convention due to the Bulgarian authorities’ failure, pursuant to their positive obligations under Article 8 of the Convention, to arrange for the applicant’s care immediately after the arrest of her parents and during the first two days of their detention.
2. In concluding that the Chamber should have found no violation of Article 8 in the particular circumstances of this case, we do not ignore or seek to undermine the Court’s well-established case-law regarding the nature and scope of States’ positive obligations under this Article and, in particular, their duty to protect the best interests of minors (see §§ 58 and 59 of the majority judgment).
3. However, we do not think that the facts of this case, as clearly reflected in the decisions of the domestic courts, support the finding of a violation.
4. Firstly, as regards the facts, it is uncontested that the parents of the applicant, the latter aged 14 at the time of their arrest on 4 December 2002, were taken from their apartment and placed in detention for two days before two separate court hearings on their prolonged detention took place on 6 December 2002. On that date questions were raised, at the initiative of the public prosecutor, regarding the provision of care for the applicant while her parents were detained. The parties disagreed regarding the manner in which the applicant’s mother responded to the judge’s question relating to care for her daughter. Her response was noted in the record of the hearing as indicating that the child (the applicant) had been taken care of (see §§ 17 and 18 of the majority judgment); a record which the parents never sought to check or subsequently rectify (see further below).
5. It is also uncontested that when they had been initially informed by telephone by their daughter that the police had come to the family apartment to arrest them, the parents were accompanied by their lawyer and that it took some time for the party of three to return home. The lawyer, who was both a friend and a neighbour, was present during their arrest and was in contact with them between the time of the arrest and the court hearing two days later. When in court, the applicant’s parents were assisted by that same lawyer and by a court-appointed interpreter. Moreover, when in prison, before and after the key court hearing on 6 December, there is no record of the parents enquiring into the care provided for their daughter in their absence or checking the court record according to which the mother had been understood – mistakenly it is argued – to have confirmed that the applicant had been taken care of.[1]
6. Secondly, as regards the decisions of the domestic courts, the applicant claimed that she had been left alone, without money or instructions regarding her care, during her parents’ absence. Before this Court, the Government relied on the fact that it had not been proven before the domestic courts that the applicant had been left alone, without an adult carer, during the period in question. A psychiatric and psychological report and medical reports ordered in the context of the domestic proceedings had established that the applicant was suffering from post-traumatic stress disorder but the domestic courts found themselves unable to establish the cause. The lawyer of the applicant’s parents, who had attended the hearings relating to their detention on 4 December 2002, testified in those proceedings in February 2008 that he had not known what had happened to the applicant during her parents’ arrest, nor could he remember anything about the circumstances relating to the question and answer of the mother in court.
7. The Varna Regional Court rejected the applicant’s claim on 27 July 2009, finding that it had not been proven that she had been left alone while her parents had been detained in December 2002. The only evidence supporting the applicant’s claim was the testimony of her parents and there were no other pieces of evidence in support of it. The court accepted that the mother had replied in the affirmative to the judge’s question whether there had been someone to care for the applicant. Consequently, it concluded that it had not been incumbent on the criminal justice system to act in any other way in order to protect the applicant. Finally, the Varna Regional Court held that the applicant’s mother had never sought to check the record of the hearing and have it rectified, despite a possibility in law for her to do so (see §§ 36-38 of the majority judgment).
8. On 10 December 2010 the Varna Court of Appeal confirmed the lower court’s decision, finding that, even if the applicant had been left alone after the arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated that “the child had someone to care for her” (see § 40 of the majority judgment). The Supreme Court of Cassation rejected an appeal on points of law by the applicant in a final decision of 18 January 2012, finding no grounds for allowing the appeal to go forward (see § 41 of the majority judgment).
9. The legal questions raised by the instant case relate to whether, firstly, there is a positive obligation on the domestic authorities pursuant to Article 8 of the Convention to protect the situation of a child who may be at risk (specifically when his or her parents are taken into custody) and, secondly, whether such a positive obligation is activated, regardless of when, how and if the situation is brought to the attention of those authorities and, in particular, regardless of the passivity of the child’s parents or their legal counsel.
10. In our view, the answer to the first question, relating to the existence of a positive obligation in respect of children at risk or potentially at risk must clearly be answered in the affirmative.[2]
11. In contrast, the second question – when and in what circumstances a State may be found wanting as regards compliance with such a positive obligation – may be a more complex one, as the circumstances of the present case demonstrate.
12. As mentioned in the Chamber judgment (see §§ 44-46) there were relevant domestic legal provisions in place designed to protect children in need of care but the majority assume, without more, that an obligation of protection arose from the moment the applicant’s parents were taken into custody (§ 62), regardless of the circumstances of the arrest, those present or the behaviour of the parents then and subsequently. Crucially, in this case, the parties differed on the question whether the applicant had actually fallen into the category of a child in need, namely whether she had been effectively left unattended in her parents’ absence so as to require (automatic or immediate) protection by the authorities. Despite extensive judicial proceedings at the domestic level, it was not proven that the applicant had indeed been left alone and without care during her parents’ detention. There is, it must be conceded, no proof that the police notified the relevant competent authorities at the time of the arrest of the applicant’s parents, alerting those authorities to the presence of a minor. However, neither is there anything in the file to suggest that her parents raised with the police the issue of her being left alone at the time of their arrest, that they brought up the question of her care in the immediate aftermath, or that they instructed their lawyer, who was present during the arrest and subsequently accessible to them, to do so. We note, in particular, that under domestic law the record of the hearing carries evidential force of the circumstances recorded therein. When answering that question at the hearing the applicant’s mother had been legally represented and assisted by an interpreter. Moreover, it is noteworthy that from the first hearing on 6 December 2002 until 17 December 2002, the date of the appellate hearing and the release of the applicant’s parents, neither of them signalled to any authority that there might have been a problem with the applicant’s care or that they were worried about their daughter’s well-being in their absence.
13. Detained persons can be considered, to some degree at least, to be in a vulnerable position. However, the applicant’s parents were educated persons of prominent background, with high-level professional experience, of apparent means, did not lack skills and they cared for their daughter (see § 65 of the majority judgment). In addition, they were legally represented by counsel who had been with them when informed by their daughter of the possibility of their arrest and during their arrest and who had continued to represent the parents throughout their subsequent detention.
14. In these circumstances, we consider that, faced with what would appear to be the parents’ and indeed their legal representative’s passivity in relation to the situation of the applicant prior to and following the arrest and detention, the competent authorities had no reason to assume that the applicant had been left alone and that she was unprovided for during her parents’ absence. The domestic courts did not find that the applicant had discharged the evidentiary burden incumbent on her relating to events during and following her parents’ arrest. It was not established that she had been left alone and the authorities had thus not been found to have failed to fulfil their obligations pursuant to domestic law in the circumstances of the present case.
15. It is also noteworthy that the majority judgment refers to no precedent in support of the activation in the manner suggested and in circumstances similar to the present case of the State’s positive obligations under Article 8. The authorities mentioned in the recapitulation of the general principles (see § 58 of the majority judgment) are clearly distinguishable.[3] For instance, reference is made to a recent judgment of another chamber of the Court – Ioan Pop v. Romania. In that case, a majority of 6 to 1 found that the failure to ensure that a twelve-year-old child was looked after by an adult while his parents were held in police custody for approximately 9 to 12 hours constituted inhuman and degrading treatment contrary to Article 3 of the Convention.[4] However, even if one were to consider that judgment a binding and persuasive precedent, several points distinguish the Ioan Pop case from the present one. The child, aged twelve at the time of the arrest of his parents, had witnessed scenes of considerable violence during the latter, including the forced sedation of his father; the Article 3 threshold was found to have been met because the competent domestic authorities had not taken measures to entrust the third applicant to an adult while his parents were at the police station or to explain to him his situation or that of his parents; and crucially, while the Court had also been confronted by divergent accounts of what had happened to the child after the arrest, it found that the domestic courts had not examined his complaint or established the relevant facts. In these circumstances and faced with diverging accounts, the Court found it sufficiently established that the applicant child had been left alone for several hours without adult supervision and it therefore went on to examine the authorities’ positive obligations under Article 3 of the Convention, finding a violation of the latter.[5] However, as pointed out previously, in the present case the majority appear to reverse this sequence of reasoning ‒ finding a violation of Article 8 of the Convention due to the authorities’ failure to respect their positive obligation towards the applicant despite the domestic courts’ extensive examination of the facts alleged by her and its rejection of her version of events between the day of the arrest and the court hearing.
16. Given the circumstances of this case and the extensive and careful findings of the domestic courts we are unable to concur with the majority that the domestic authorities failed in the present case to discharge their positive obligations under Article 8 of the Convention. While we recognise the distress which the applicant must have felt at the time of the arrest and thereafter, we do not consider that it is appropriate for an international court which adheres to the principle of subsidiarity to interfere with or ignore, in the manner just described, the facts as established by the domestic courts. We also see no basis, in the Court’s own jurisprudence, for finding a violation of Article 8 in the circumstances of the present case.
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[1] Note that, on appeal by the applicant’s parents, the detention orders were lifted in two separate decisions of 17 December 2002, following which the applicant’s parents were released on bail and returned home the same day. The request for their extradition to Turkmenistan was refused on 22 May 2003 in proceedings before the Varna Regional Court at which they were represented by the same lawyer.
[2] See, for example, Eremia v. the Republic of Moldova, no. 3564/11, 28 May 2013 (failure of authorities to take adequate measures to protect daughters traumatised as a result of witnessing their father’s violent assaults on their mother).
[3]One illustration provided isthe case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, ECHR 2006-XI (a case involving the detention, alone, of a five-year-old girl in Belgium following her illegal entry into the country, where the Court found, inter alia, violations of Articles 3 and 8 of the Convention). The circumstances of the present case are markedly different.
[4] No. 52920/09, 6 December 2016.
[5] See Ioan Pop, cited above, §§ 31-34 and §§ 56-60. See, however, the dissent by Judge Sajó, who, correctly in our view, highlights the fact that the chamber judgment even in that case showed a distinct disregard for the facts which had been established by the domestic courts.
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